Oscar H. Brown v. R. D. Werner Co., Inc., 428 F.2d 375, 1st Cir. (1970)
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Scribd Government DocsOscar H. Brown v. R. D. Werner Co., Inc., 428 F.2d 375, 1st Cir. (1970)
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Scribd Government Docs428 F.
2d 375
Oscar H. BROWN, Plaintiff, Appellant,
v.
R. D. WERNER CO., Inc., Defendant, Appellee.
No. 7531.
United States Court of Appeals, First Circuit.
June 16, 1970.
Paul R. Cox, Dover, N.H., with whom John T. Barrett, III, and Burns,
Bryant & Hinchey, Dover, N.H., were on the brief, for appellant.
John R. Falby, Jr., Manchester, N.H., with whom Dort S. Bigg and
Wiggin, Nourie, Sundeen, Pingree & Bigg, Manchester, N.H., were on the
brief, for appellee.
Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.
PER CURIAM.
This is a products liability suit brought against the manufacturer of a ladder
from which plaintiff fell, sustaining serious injuries. The action is based on two
theories: strict liability and negligent design, manufacture, testing and
inspection of the ladder. Plaintiff appeals from the granting of summary
judgment for the defendant.
The sole issue in this case is whether the plaintiff is collaterally estopped to
raise the issues presented in this action by a general jury verdict for the
defendant in a prior state court action brought against the retailer of the ladder.
Two questions are involved. First, were facts and issues essential to plaintiff's
cause of action here actually litigated and decided adversely to him in the
previous action? Second, may this defendant, not a party to the prior
proceeding, avail himself of the benefits of that judgment?
We think it clear that plaintiff is collaterally estopped if defendant may avail
itself of the prior judgment. The state court suit was brought against
Montgomery Ward Company, the seller of the ladder. The court instructed the
jury that the defendant placed its own label on the ladder and by so doing made
itself "subject to the same liability as though he were the manufacturer." 1 The
identical issues raised here negligent design, manufacture, testing or
inspection of the ladder and strict liability for a dangerous article were
litigated and submitted to the jury in the state court.2 The jury returned a
general verdict for the defendant.
4
The verdict is sufficient to raise an estoppel on both issues. As long as each "of
the possible grounds for the former decision is legally sufficient to bring him
the result he wants", a party seeking the benefit of collateral estoppel is entitled
to it dispite a general verdict. F. James, Civil Procedure 11.20, at 580 (1965).
As to strict liability, there is no ambiguity. The verdict necessarily
comprehends a finding that at least one of the elements under Restatement
(Second) Torts 402A (1965), in accordance with which the court instructed,
was lacking. It matters not which element was missing, as the absence of any
would be determinative of that count here.
The situation is a bit more complex, but not materially different, on the issue of
negligence. If the jury found no contributory negligence, it must have
concluded that the defendant was not negligent to reach its verdict. On the
other hand, it may have found that plaintiff was guilty of contributory
negligence, in which case defendant's negligence vel non is immaterial. In
either event, the finding is determinative of plaintiff's negligence count here.
James, supra.
As the elements of collateral estoppel are made out, we pass to the question
whether defendant may avail itself thereof. We think the result is governed by
the recent case of Sanderson v. Balfour, 109 N.H. 213, 247 A.2d 185 (1968).
There the Supreme Court of New Hampshire flatly rejected the doctrine of
mutuality of estoppel, adopting Justice Traynor's test in Bernhard v. Bank of
America National Trust & Savings Association, 19 Cal.2d 807, 122 P.2d 892
(1942): "Was the party against whom the plea is asserted a party or in privity
with a party to the prior adjudication?" 19 Cal.2d at 813, 122 P.2d at 895
(emphasis supplied). We think it clear, therefore, that New Hampshire law
permits one to make a defensive use of a prior judgment against the former
plaintiff, as the plaintiff has had "a full and fair opportunity to litigate the issue
* * * [and] public policy and reason both dictate that he be bound by [the
former] loss." Sanderson, supra, 247 A.2d at 187. 3
Affirmed.
Notes:
1
The propriety of the court thus determining what may arguably have been a
disputed issue of fact is not material here. We are concerned solely with what
issues were determined by the state court jury. Although it may have acted
under incorrect instructions, it is clear that the jury was instructed to treat the
retailer and the manufacturer as one and the same. We must assume that it did
so
Theories of recovery not present here were also submitted. All, however, were
alternative grounds of recovery and the jury found against the plaintiff on each.
They do not, therefore, provide alternate bases of the decision and do not
obfuscate the question whether the jury actually decided the negligence and
strict liability issues
Plaintiff's attempt to distinguishSanderson on the ground that there was a
special finding in the first action there fails. As we have stated, each of the
possible bases of the jury's verdict is sufficient to estop the plaintiff. It is
therefore immaterial that we are ignorant of the precise ratio decidendi.
